In a case where the promotion committee for establishing the housing redevelopment project partnership Gap organized with the written consent of a majority of the owners of lands, etc. with the written consent stating that "the promotion committee agrees to promote the affairs, such as organizing the promotion committee and selecting the specialized management project management project," and thereafter the promotion committee decided to select Eul corporation among the enterprises that submitted the bid proposal through the public announcement on the selection of the specialized management project management project, and then the agenda to select Eul corporation as the specialized management project management project management project management project management project management project management project management project management project management project management project management project management project management project management project management project management project management project management project management project, upon the consent of a majority of the owners of lands, etc. present at the general meeting, the case held that the promotion committee under the regulations on the operation of the promotion committee concluded a service contract with Eul corporation after the resolution of the general meeting of residents, shall obtain the written consent of a majority of the owners of lands, etc. who consented to the organization of the promotion committee; and that the specialized management project management project management project management project management project shall be selected through competitive bidding;

Article 14 (1) 2 (see current Article 32 (1) 1), (2) (see current Article 32 (2)), (3) (see current Article 32 (4)), and Article 15 (see current Article 34) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 9444, Feb. 6, 2009); Article 22 (see current Article 26), and Article 25 subparagraph 2 (see current Article 28 subparagraph 2) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Presidential Decree No. 21697, Aug. 11, 2009)

Tae Young City Maintenance Co., Ltd. (Attorney Cho Chang-chul, Counsel for the defendant-appellant)

Han-dong 3 Housing Redevelopment and Improvement Project Association (Law Firm Han-dong, Attorneys Lee Jae-ho et al., Counsel for the plaintiff-appellant)

Daegu High Court Decision 2018Na26179 decided July 26, 2019

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

1. A. The reasoning of the lower judgment and the record reveal the following facts.

(1) In order to establish the Defendant Cooperative for implementing the rearrangement project, the instant promotion committee constituted pursuant to Article 13 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009; hereinafter “former Act”) shall obtain the written consent of a majority of the owners of lands, etc. about the composition of the promotion committee around March 2006 from the head of the Seo-gu Metropolitan City on July 4, 2006 with the approval of the head of the Gu

(2) As above, Article 14(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and Article 22 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21697 of August 11, 2009), which states that the instant promotion committee’s written consent from the owners of lands, etc. regarding the organization of the promotion committee as mentioned above refers to eight duties that the promotion committee can perform pursuant to Article 22 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21697 of August

(3) On July 14, 2006, the instant promotion committee decided to select the Plaintiff as a specialized management businessman of rearrangement projects, among the Plaintiff (i.e., the Plaintiff (i., the Plaintiff Company IM) who submitted a bid proposal at the meeting of the promotion committee on July 14, 2006 at the public announcement of the designation of the specialized management businessman of rearrangement projects and the site site consultation.

(4) On August 11, 2006, the instant promotion committee selected the Plaintiff as a specialized management businessman of rearrangement projects and proposed the agenda items to enter into the instant service contract with the Plaintiff. The said agenda items were resolved with the consent of a majority of the owners of lands, etc. present at a general meeting.

(5) Accordingly, on August 25, 2006, the instant promotion committee and the Plaintiff concluded the instant service contract that selects the Plaintiff as a specialized management businessman of rearrangement projects.

B. Based on such factual basis, the lower court rejected the Defendant’s assertion that the instant service contract was null and void, on the grounds that the instant promotion committee did not obtain written consent from the owners of land, etc. under the former Urban Improvement Act and the operating regulations of the instant promotion committee (hereinafter “Operational Rules”) in the course of selecting the Plaintiff as a specialized management businessman, and that it did not select an enterprise through competitive bidding, and partly accepted the Plaintiff’s primary claim against the Defendant seeking payment of the service price, deeming the said service contract valid.

2. However, it is difficult to accept the judgment of the court below for the following reasons.

A. The instant service contract concluded between the Plaintiff and the instant promotion committee is null and void as it does not satisfy the written consent requirements of the owners of land, etc. required by the relevant statutes.

(1) The contents of the duties of the promotion committee agreed by the owners of land, etc. with respect to the composition of the promotion committee of this case are the same as those of the promotion committee stipulated in the former Urban Improvement Act and its Enforcement Decree. The duties of selecting a specialized management businessman of rearrangement projects also stipulate the duties that can be performed by the promotion committee under Article 14 of the former Urban Improvement Act, and are included in the duties that the promotion committee can perform as a matter of course without any separate written consent. Therefore, the written written consent on the composition of the promotion committee is merely a notification of the scope of performing duties of the promotion

However, in the actual process of performing each of the above duties, if the details of the pertinent duties correspond to the duties stipulated in Article 14(3) of the former Urban Improvement Act, etc., the committee shall comply with individual procedures and requirements under the relevant Acts and subordinate statutes. However, Article 8(1)2 of the Operational Rule of this case provides that when selecting and replacing a rearrangement project management contractor under Article 28(1) (b) and concluding a separate contract with a rearrangement project management contractor selected as such under Article 28(2) [Article 28(2)], the committee shall obtain written consent from at least 1/2 of the owners of lands, etc. who consent to

(2) In light of the purport of such relevant provisions, the consent of the owner of a plot of land, etc. to jointly agree with the organization of the promotion committee is merely that the promotion committee agrees to perform the business of selecting a management entity specialized in rearrangement projects, and the promotion committee selects a specific business entity, which is a business entity that entails the cost of the owner of a plot of land, etc. or causes changes in rights and obligations, and further does not deem that it

Meanwhile, the instant operational rules are required to obtain written consent from the owners of lands, etc. who have consented to organizing the committee of promoters (Article 8(1)2) and to make decisions following the resolution of a resident general meeting (Article 21 subparag. 1). Since the items to be selected as a rearrangement project management contractor are separate procedures that differ from each other, it does not exempt the owners of lands, etc. from an obligation to obtain separate written consent, even if the items to be selected as a resident general meeting of the residents have been resolved, and it cannot be said that the following tasks, such as concluding a service contract with the rearrangement project management contractor, are conducted without such written consent (see Supreme Court Decision 2010Da5705, Sept. 1

Therefore, where a rearrangement project management company is selected through a resolution of the residents' general meeting, the promotion committee shall obtain written consent from a majority of the owners of lands, etc. who have agreed to organize the promotion committee pursuant to Article 8(1)2(b) of the Operational Rule of this case, and subsequent consultation on the overall implementation of the project, such as the scope of duties and the bearing of related project costs, is required (Article 28(2)) and then a final contract is concluded with the selected company (Article 8(1)2(c).

(3) However, according to the records, the instant promotion committee did not obtain written consent from the owners of land, etc. who agreed to organize the promotion committee regarding the matters on which the Plaintiff was selected as a management contractor of rearrangement projects through a general meeting of residents as well as the conclusion of

Therefore, the instant service contract should be deemed unlawful on the ground that the Plaintiff failed to meet the requirements for written consent of the owners of land, etc. required by the relevant statutes in the process of selecting the Plaintiff as a specialized

B. Furthermore, since the instant service contract appears to have failed to meet the requirements for the resolution of the residents’ general meeting by competitive bidding required by the relevant laws and regulations, it cannot be recognized as a single copy or its validity.

(1) The instant promotion committee selected the Plaintiff through a resolution of the promotion committee among the Plaintiff and the Plaintiff who participated in the bid for the selection of a specialized management businessman of rearrangement projects, and then selected the Plaintiff as a specialized management businessman with the consent of a majority of the votes obtained by present the Plaintiff to the residents' general meeting

(2) However, the instant operational regulations provide that the selection of a management entity specialized in improvement projects shall be made by means of a general competitive bid or a selective competitive bid (Article 28(1)), but shall be made by resolution with the consent of a majority of the owners of lands, etc. present at a resident general meeting (Article 21(

In addition, Article 25 (1) of the above operating regulations provides for matters that can be resolved by the promotion committee, and the selection of a management entity specialized in improvement projects is not included in matters that can be resolved by the promotion committee, and there is no data to regard that the authority to select one of multiple enterprises has been delegated by the residents' general meeting.

(3) “Selection” means that it is necessary to select one of the multiple candidates, and thus, in light of the above operational regulations, the authority to select and determine one of the participating companies in the tender is within the residents’ general meeting. The promotion committee is capable of conducting prior preparation for the selection, such as prior examination of the candidate company and holding a general meeting for the selection of the company, and it is not allowed for the promotion committee to select one of the several candidate companies in fact exceeding the scope of prior examination.

Furthermore, the promotion committee of this case held a residents' general meeting and opened only the conditions presented by the plaintiff without disclosing information and conditions on the multi-party competition in which the plaintiff participated in the bidding at all, and proceed only with the pros and cons of the plaintiff selected by the promotion committee in the absence of disclosure of the conditions presented by the multi-party residents.

As such, it is difficult for the promotion committee to select only one of the multiple candidates companies that actually go through the vote at the general meeting, beyond its prior deliberation authority, to deprive the owners of lands, etc. who bear the relevant expenses or whose rights and duties are changed, of the opportunity to select a direct company compared with the conditions of the competition company and the ability to perform their duties.

Therefore, the method of resolution by the residents' general meeting is unlawful against the intent of the former Act on the Maintenance of Urban Areas and the instant operating regulations, which permits the selection of a management entity specialized in improvement projects through competitive bidding.

C. Nevertheless, solely based on its stated reasoning, the lower court determined that the instant service contract was lawfully concluded and valid. In so determining, the lower court erred by misapprehending the legal doctrine on the procedure for written consent and competitive bidding of the owners of land, etc. for the selection of a specialized management businessman of rearrangement projects under the former Act, thereby adversely affecting the conclusion of the

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-hee (Presiding Justice)